FUNERAL EXPENSES ‑- PUBLIC ASSISTANCE

FUNERAL EXPENSES ‑- PUBLIC ASSISTANCE.

The Department of Public Assistance's responsibility under RCW 74.08.120 to provide funds for funeral expenses for persons dying without assets is absolute and not relieved or lessened by virtue of the provisions of RCW 68.08.160.

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                                                                  August 3, 1954

Honorable J. Chester Gordon
Chairman, Subcommittee on Public Welfare
206-C Administration Building
University of Washington
Seattle, Washington                                                                                                         Cite as:  AGO 53-55 No. 290

Dear Sir:

            This is to acknowledge your recent letter requesting our opinion in respect to the responsibility of the Department of Public Assistance to provide funds for funeral expenses of persons dying without assets.  In your letter you have posed several questions in respect to RCW 68.08.160 and RCW 74.08.120.  For the purposes of this opinion we have taken the liberty of paraphrasing your various inquiries into the following single question: "Under what circumstances, if any, does RCW 68.08.160 relieve the Department of Public Assistance of its obligation under RCW 74.08.120 to provide funds for a minimum standard funeral for persons dying without assets?"

            In our view, the department's responsibility under RCW 74.08.120 to provide funds for funeral expenses for persons dying without assets is absolute and not relieved or lessened by virtue of the provisions of RCW 68.08.160.

                                                                     ANALYSIS

            RCW 68.08.160 provides as follows:

            "The right to control the disposition of the remains of a deceased person, unless other directions have  [[Orig. Op. Page 2]] been given by the decedent, vests in, and the duty of interment and theliability for the reasonable cost of interment of such remains devolves upon, the following in the order named:

            "(1) The surviving spouse;

            "(2) The surviving children of the decedent;

            "(3) The surviving parents of the decedent.

            "The liability for the reasonable cost of interment devolves jointly and severally upon all such kin of the decedent in the same degree of kindred and upon the estate of the decedent."  (Emphasis supplied)

            The above section is codified under Cemeteries, Morgues and Human Remains and is derived from section 29, chapter 247, Laws of 1943.  This statute has never been interpreted by this office or by our Supreme Court.  On its face this provision purports to impose upon certain named persons a relative responsibility for the payment of funeral expenses.

            By RCW 74.08.120, the Department of Public Assistance has been given the responsibility of providing certain funds toward payment of funeral expenses of persons dying without resources or assets and in its present form provides in part as follows:

            "* * *

            "The department is hereby directed through the county offices toassume responsibility for the funeral of deceased persons dying without assets sufficient to pay for the minimum standard funeral herein provided.

            "The department shall not pay more than cost for a minimum standard service rendered by each vendor.  Payments to the funeral director and to the cemetery or crematorium will be made by separate vouchers.   [[Orig. Op. Page 3]] The standard of such services and the uniform amounts to be paid shall be determined by the department after giving due consideration to such advice and counsel as it shall obtain from the trade associations of the various vendors and related state departments, agencies and commissions.  The payments made by the department shall not be subject to supplementation by the relatives or friends of recipients.  Whenever relatives or friends provide for other than the minimum standard service authorized, the state shall not participate in the payment of any part of the cost."  (Emphasis supplied)

            RCW 68.08.160,supra, and RCW 74.08.120 (and the latter's predecessor Rem. Supp. 1941, § 9998-46) have had a peaceful co-existence for some eleven years during which time the department has construed its responsibility in respect to funeral expenses without any reference to RCW 68.08.160.  Thus, in considering the problem herein, considerable weight may be given to the interpretation of the department.  In re Smiley's Estate, 35 Wn. (2d) 863.

            RCW 74.08.120 also has never been before our Supreme Court.  Its predecessor statute,supra, however was construed by our court in State v. Guaranty Trust Company, 20 Wn. (2d) 588.  This decision, which makes no reference to RCW 68.08.160, held that the funeral expense provision of our public assistance laws permits payment only in situations where need is established and the person dying has no assets.  In our opinion the views of our court would be the same if RCW 74.08.120 were before the court.  Accordingly, it is apparent that the department's responsibility for the payment of funeral expenses applies only in situations of need.  Where an estate exists, by virtue of RCW 11.76.110, funeral expenses are a first claim against the assets thereof.

            We do not feel compelled in this opinion, in answer to the inquiry posed, to determine the circumstances or contingencies under which RCW 68.08.160 might be operative, but rather need only to determine the conditions under which RCW 74.08.120 applies and controls.  The statutes pertaining to welfare and public assistance embrace a complete subject and in our view RCW 74.08.120 applies to one phase of that subject exclusively.  RCW 68.08.160, however, is part of an entirely different subject of legislation.  There is nothing in  [[Orig. Op. Page 4]] this section that gives any hint that it was intended by the legislature to have application to the administration of our statutes relating to welfare and public assistance and thus relieve the state in certain instances of its obligation expressed in RCW 74.08.120 or its predecessor statutes.  In fact, the language of the latter statute providing "The payment made by the department shall not be subject to supplementation by the relatives or friends of recipient" evidences a legislative intention that the department has the responsibility to provide funds for the funeral expenses of persons dying without assets and no responsibility is imposed on friends or relatives.

            Nor can RCW 68.08.160 be construed as an "asset" for the purpose of determining the applicability of RCW 74.08.120.  A statute of questionable application purporting to create an unspecified liability cannot, in our view, be considered an asset within the terms of another statute.

            By concluding that RCW 74.08.120 sets forth the exclusive statutory liability for the payment of funeral expenses for persons dying without assets, we do not purport to indicate that RCW 68.08.160 has been repealed by implication.  Repeals by implication are not favored by law and in our analysis the instant problem does not come within the exceptions to this rule as set forth inState v. Spanaway Water District, 28 Wn. (2d) 393.

            We only conclude herein that as to persons dying without assets, the payment of funeral expenses by virtue of the provisions of RCW 74.08.120 is the responsibility of the state and that RCW 68.08.160 does not relieve the state of that obligation.  Inasmuch as there are no provisions within our welfare and public assistance statutes imposing any relative responsibility we cannot assume that another statute, a part of a different and unrelated subject of legislation, supplies that which the legislature has omitted from the public assistance laws.  We must assume, however, that RCW 74.08.120 and its predecessor statutes dealing with funeral expenses of persons dying without assets were enacted to meet certain situations which the legislature believed were not appropriately controlled by previous legislation.  Trudeau v. Pacific States Box & Basket Co., 20 Wn. (2d) 561.

            In summary we conclude that the responsibility imposed upon the department by RCW 74.08.120 is not relieved or lessened by the provisions of RCW 68.08.160.

Very truly yours,

DON EASTVOLD
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General